Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA

PAM R.,

)

) Supreme Court No. S-
12742

Appellant,

)

) Superior Court Nos.
3AN-05-371/372 CN

v.

) and 3AN-06-368
CN

)

STATE OF ALASKA,

) O P I N I O
N

DEPARTMENT OF HEALTH AND

)

SOCIAL SERVICES, OFFICE OF

) No. 6266 - May 23,
2008

CHILDRENS SERVICES,

)

)

Appellee.

)

)

Appeal from the
Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Sen K. Tan,
Judge.
Appearances: Christi A. Pavia, Pavia Law
Office LLC, Anchorage, for Appellant.
Michael G. Hotchkin, Assistant Attorney
General, Anchorage, and Talis J. Colberg,
Attorney General, Juneau, for Appellee. Anita
L. Alves, Assistant Public Advocate and
Joshua P. Fink, Public Advocate, Anchorage,
for Guardian ad Litem.
Before: Fabe, Chief Justice, Eastaugh,
Carpeneti, and Winfree, Justices. [Matthews,
Justice, not participating.]
WINFREE, Justice.
I. INTRODUCTION
A grandmother appeals from a trial court determination
that she is not the Indian custodian of her three grandchildren
under the Indian Child Welfare Act. The trial court found that
contrary to her urgings, the grandmother was not an Indian
custodian by tribal custom or by transfer of physical custody of
the children; she argues that the courts findings are erroneous.
There is sufficient evidence in the record to support the trial
courts findings, and we therefore affirm.
II. FACTS AND PROCEEDINGS
A. Facts1
Mark and Sally have three sons, Max (born in 2002),
George (born in 2004), and Edward (born in 2006). Mark has some
Alaska Native heritage, and Sally is an enrolled member of the
Native Village of Kotzebue. Pam R., the childrens maternal
grandmother, is an Alaska Native. Each of the three children is
an Indian child2 within the meaning of the Indian Child Welfare
Act of 19783 (ICWA).
From the time of Maxs birth until mid-May 2005, Mark,
Sally, and the children generally led somewhat of a chaotic and
nomadic lifestyle, residing with a variety of relatives and
friends. The trial court observed that [i]t is really impossible
to determine accurately where the parents and children have
resided since 2002.
In early May 2005 Mark was incarcerated for assaulting
Sally; Sally briefly disappeared, leaving Max and George with
Pam. Pam sought help from Marks parents, the Olivers. The
Olivers took Max and George to their home and indicated to OCS
that they wanted the children to remain with them. But at that
time, the OCS social worker believed there was not a sufficient
basis to justify removing the children from Sallys custody and
recommended that they be returned to her.
Later in May 2005 an OCS social worker met with Sally
and Pam and devised a care and safety plan to allow Max and
George to remain with Sally in Pams home. The plan specifically
provided that Pam would be responsible to care for [the] children
and [would] not allow any unsupervised contact between [Sally and
the] children and that Pam was not to allow Sally contact with
the children if Sally were under the influence of drugs. The
trial court later found that this care and safety plan did not
grant [Pam] custody over the children, but made her [Sallys] and
the childrens supervisor.
Mark was released from jail in June 2005 and regularly
saw the children despite a restraining order barring contact with
Sally. Sally decided when the children would visit with Mark and
the Olivers. Mark again was incarcerated in August 2005, and
Sally also was incarcerated briefly at about this same time for
assaulting Marks sister. After Marks release, he joined the
children at Pams home for about ten days.
Mark called OCS in early November 2005 to express
concerns that Max and George were living in a crack house with
Sally. An OCS social worker, accompanied by local police, went
to the trailer where Mark had alleged Sally and the children were
living. When no one answered the door, the social worker called
Pam and asked where the children were. Pam first stated that
they were with her, but when the social worker asked to visit,
Pam admitted that Max was with Sally. Pam soon came to the
trailer, and, observed by the social worker, brought Max out with
her. When Sally came out of the trailer, she appeared to be
under the influence of drugs. The OCS social worker described
the trailer as an ice block. It had an uncovered broken window,
numerous boarded-up windows, exposed pipes, and only a small
space heater in a back room.
OCS told Sally that she must consent to giving custody
of Max and George to the Olivers or OCS would take emergency
custody of them.4 OCS did not consider whether Pam had any
rights as an Indian custodian.5 Sally agreed to place the
children with the Olivers under the terms of a new care and
safety plan.
In December 2005 OCS filed a petition to adjudicate Max
and George children in need of aid based on Sally and Marks
history of substance abuse and domestic violence. The Kotzebue
IRA Council/Native Village of Kotzebue (the Tribe) intervened and
was granted an equal right to notice and to participate in all
proceedings in [the] case. Mark and Sally later stipulated that
Max and George were children in need of aid and agreed to work
case plans with OCS for reunification of the family.
In April 2006 OCS recommended that the children be
committed to OCSs custody for up to two years, and at a
disposition hearing the trial court found the ICWA relative
placement with the Olivers to be in Max and Georges best
interests. The court also recognized that Pam was trying to
assert rights as the childrens Indian custodian and appointed an
attorney to represent her.6 Pam sought to intervene in the
termination proceedings in August 2006.
On October 9, 2006, Sally gave birth to Edward at home.
Sally and Edward were transported to a hospital, where Edward
tested positive for cocaine and was found to have several other
health concerns. The next day, October 10, 2006, an OCS social
worker notified the hospital staff that OCS was assuming custody
of Edward.7 Sally was not informed of this by OCS, but when
Sally told hospital staff that Pam was going to take Edward home,
she was advised that it would be up to OCS and that [they would]
have to have a meeting with OCS.
On October 11, 2006, a team decision meeting was held
at the hospital to discuss Edward. Sally and Pam apparently had
agreed prior to Edwards birth that Pam would take care of Edward,
and at the meeting they presented a form document memorializing
Sallys designation of Pam as Edwards Indian custodian.8 An OCS
social worker then informed them that Edward already had been
taken into emergency custody and that a disposition hearing had
been scheduled.9
B. Proceedings
A hearing on Pams status as the three childrens Indian
custodian was held over three days in January and February 2007.
Sally and Pam advocated for Pams designation as the childrens
Indian custodian; Mark objected. The guardian ad litem for the
children opposed Pams designation as Indian custodian.
It was clear that for the majority of time from May
through early November 2005, Max and George lived in Pams home,
but at trial the parties characterized Pams role in the two
childrens lives very differently. Sally considered Pam the
childrens default mother, assuming that Pam would always be there
for Max and George and leaving them with Pam for indefinite
periods of time. Pam agreed, testifying that she was like a
mother to the children and that they were always around [her].
Mark testified that Pam was more like a babysitter. Sally also
testified that she and Mark decided where the family would live
and made all of the medical decisions for the boys. Marks mother
testified that [e]verything was always up to [Sally], and other
testimony reflected that Sally was the primary decision-maker
when she was present, although she was frequently elsewhere or
unavailable.
Mary Schaeffer, a member of both the Kotzebue tribal
council and the Tribes social services committee and a qualified
expert on Kotzebue tribal customs, testified that Pam was an
Indian custodian for the children under the Tribes customs. She
also testified that Kotzebues Native culture never had that kind
of [family] dispute [about the designation of an Indian
custodian] where it cant be resolved, but if family consensus
could not be reached, a dispute likely would be resolved by the
tribal court.10
The trial court noted that as represented by Schaeffer,
the Tribes conceptualization of an Indian custodian was fluid and
based on observations of who [was] taking care of their children
when the parents are absent or are unavailable. The court
concluded that as a matter of law ICWA requires a narrower
interpretation than the definition Pam sought and that an Indian
custodian is not just a caregiver or an addition to a parent;
rather, an Indian Custodian is a person who stands in the place
of a parent in a CINA proceeding. The court went on to find that
Pam was not the childrens Indian custodian by tribal custom
because [t]he children were not consistently or exclusively in
her care, and it was the parents who maintained both legal and
physical custody of the boys.
On this same basis, the trial court also found that Pam
was not the childrens Indian custodian through temporary physical
custody. Finally, the court found that even if Pam at one time
had temporary physical custody of Max and George, it was revoked
when OCS assumed their legal custody and Mark and Sally agreed to
OCS case plans for reunification of the family.
Pam appeals, arguing that both her physical custody of
the children and tribal custom qualify her as the childrens
Indian custodian under ICWA and that the trial court erred in
finding otherwise.
III. STANDARD OF REVIEW
We apply the clear error standard when reviewing a
trial courts factual findings,11 reversing only where we have a
definite and firm conviction that a mistake has been made.12 When
reviewing factual findings we ordinarily will not overturn a
trial courts finding based on conflicting evidence,13 and we will
not reweigh evidence when the record provides clear support for
the trial courts ruling;14 it is the function of the trial court,
not of this court, to judge witnesses credibility and to weigh
conflicting evidence.15 Questions of law such as the trial
courts interpretation of Indian custodian under ICWA are
reviewed de novo.16
IV. DISCUSSION
A. Introduction
Because no state or tribal court order had placed legal
custody of the children with Pam, Pam could be the childrens
Indian custodian only by tribal custom or by parental transfer to
her of the temporary physical care, custody, and control of the
children.17 ICWA does not define or otherwise explain temporary
physical care, custody, and control.18 Pam asserts that neither
ICWA nor state law articulates any relevant standards of
exclusivity or duration of care, and OCS does not present any
relevant objective criteria. Other jurisdictions have noted that
a court should consider the nature, frequency, and duration of
contacts when making a determination whether a nonparent had
physical care of a child.19 Because under ICWA a physical
custodians right to care for a child flows solely from a parents
temporary transfer of child-care responsibility, the custodial
relationship logically may end when a parent returns and
reassumes responsibility for the childs care, custody, and
control.
B. Physical Custody
1. Max and George
The trial court acknowledged that Pam was very active
and involved as a grandparent to Max and George, and that they
spent a great deal of time with her both with and without their
parents. But the court found that despite the familys chaotic
and nomadic lifestyle, the children were with the parents most of
the time, the parents made the decisions where the children would
reside, and without exception the parents brought the children to
medical appointments or for emergency treatment. The court found
that the children were not consistently or exclusively in Pams
care; rather it was the parents who maintained both legal and
physical custody of the boys[,] and objectively the facts do not
support the proposition that either parent ceded legal custody or
transferred temporary physical custody to Pam. Accordingly, the
court found that Pam was not Max and Georges Indian custodian
through physical custody.
Pams challenge to the finding that she is not Max and
Georges Indian custodian through physical custody is built on (1)
attacking the trial courts underlying finding about Marks
consistent involvement in decision-making for the children;
(2) arguing as a matter of statutory interpretation that ICWA
allows one parent to transfer physical custody of children to an
Indian custodian; and (3) arguing that as a matter of law there
is insufficient evidence to support the trial courts finding that
Sally did not transfer temporary physical custody of Max and
George to Pam.
Pams attack on the courts finding about Marks
involvement with the children has some merit he may have had
frequent contact with the children before May 2005, but his
contact with them after his incarceration for assaulting Sally
was infrequent at best. But while Marks role as an active parent
may have been overstated by the trial court, after considering
the entire record we hold that the courts finding that neither
parent transferred physical custody to Pam is not clearly
erroneous. The court heard conflicting testimony,20 made
credibility determinations, weighed the evidence, and reached its
conclusion. We defer to the trial court and therefore affirm the
finding, without having to address Pams statutory interpretation
argument that only one parent is necessary for the transfer of
physical custody to an Indian custodian.
2. Edward
Edward warrants a different analysis. Pam and Sally
claimed that before his birth they agreed Pam would take care of
him, and a document to that effect was produced at OCSs October
11 meeting. But the trial court found that OCS had assumed
emergency custody of [Edward] prior to any attempt by [Sally] to
transfer legal custody to her mother.
Given Edwards birth and immediate hospitalization and
the timing of events at the hospital, including OCSs assumption
of emergency custody over Edward the day before Sally signed the
ICWA designation form for Pam to be his Indian custodian, we
cannot conclude that this finding is clearly erroneous. We
affirm the finding that Edwards temporary physical care, custody,
and control had not been transferred to Pam prior to OCS assuming
emergency custody of him, and therefore that Pam was not Edwards
Indian custodian through physical custody.
C. Tribal Custom
Mary Schaeffer, an expert on Kotzebue tribal laws and
customs, testified that the Tribes customs recognize an Indian
custodian for purposes of ICWA when a parent entrusts the care of
his or her child to [that] person. She testified that no
specific words or written agreements are required, nor is the
affirmative consent of both parents necessarily required. Based
on facts presented to her by Pams attorney, Schaeffer ultimately
concluded that Pam was an Indian custodian of the children
pursuant to tribal custom: I think if you want to put it down on
paper, she is . . . an Indian custodian. From our culture, she
is already one . . . we need to think about the kids. Theres got
to be stability with the family. But she also testified that
Marks objection to Pam as the Indian custodian could not be
resolved under tribal custom without bringing it before a tribal
court.
We conclude from Schaeffers testimony that Pam
qualified to be the childrens Indian custodian based on tribal
custom, but because Mark objected to her designation and the
tribal court had not resolved the dispute, Pam had not yet become
the childrens Indian custodian through tribal custom. We
therefore affirm the trial courts finding that Pam is not the
childrens Indian custodian under tribal custom, without deciding
whether the court properly interpreted the depth and breadth of
ICWAs definition of Indian custodian.
V. CONCLUSION
We AFFIRM the trial courts determination that Pam is
not the childrens Indian custodian under ICWA.
_______________________________
1 Pseudonyms are used for all family members.
2 See 25 U.S.C. 1903(4) (2000).
3 25 U.S.C. 19011963. ICWA establishes minimum Federal
standards for the removal of Indian children from their families
and [for] the placement of such children in foster or adoptive
homes which will reflect the unique values of Indian culture. 25
U.S.C. 1902 (2000). As this court recently observed:
The Act establishes a system for
ensuring tribal participation in state
procedures for placing Native children and
provide[s] for tribal court jurisdiction over
many child welfare proceedings. In addition,
the Act creates a series of procedural
safeguards that limit the circumstances under
which Indian children may be removed from
their family homes.
State, Dept of Health & Soc. Servs., Div. of Family & Youth
Servs. v. Native Vill. of Curyung, 151 P.3d 388, 412 (Alaska
2006).
4 AS 47.10.142 and CINA Rule 6(a) permit OCS to assume
emergency custody of a child without court order, but require OCS
to file a petition within twenty-four hours when it is determined
that continued custody is necessary to protect the child.
5 ICWA recognizes and accords certain rights to an Indian
custodian, who is any Indian person who has legal custody of an
Indian child under tribal law or custom or under State law or to
whom temporary physical care, custody, and control has been
transferred by the parent of such child. 25 U.S.C. 1903(6)
(2000). See discussion infra note 6.
6 ICWA contemplates that an Indian custodian will share
or assume many of the rights possessed by custodial parents in
child custody proceedings. Under ICWA, rights possessed by both
an Indian childs parent and Indian custodian in relation to a
custody proceeding include: (1) the right to notice of an
involuntary proceeding and to obtain a continuance, 25 U.S.C.
1912(a) (2000); (2) the right to participate as a party in a
state court proceeding for foster care placement or termination
of parental rights, see 25 U.S.C. 1911(c) (2000) (giving Indian
custodian right to intervene); (3) the right to court-appointed
counsel if indigent, 25 U.S.C. 1912(b) (2000); (4) the right to
avoid a childs removal from a parent or Indian custodian or the
termination of a parents parental rights unless a showing is made
that continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical
damage to the child, 25 U.S.C. 1912(e)(f) (2000); (5) the right
to voluntarily consent to a foster care placement and the right
to withdraw such consent at any time and have the child returned,
25 U.S.C. 1913(a)(b) (2000); (6) the right to petition a court
to invalidate a foster care placement or termination of a parents
parental rights when the Indian child was removed from the parent
or Indian custodians custody in violation of certain provisions
of ICWA, 25 U.S.C. 1914 (2000); and (7) the right to have an
Indian child returned when a petitioner in a state court child
custody proceeding improperly removes or retains custody of the
child, unless the child would be endangered, 25 U.S.C. 1920
(2000).
If Pam were the childrens Indian custodian, these
provisions would have given her the right to participate as a
party in the termination proceedings and perhaps the right to
require that the children be returned to her.
7 See supra note 4.
8 This form document provided that Sally was hereby
transfer[ring] the care and custody of Edward to Pam, authorized
Pam to consent to medical treatment and hospital care for Edward,
and expressed that the placement is revocable [under] ICWA.
Sallys signature was dated October 11, 2006, as was Pams
signature confirming her acceptance. Pam testified that she and
Sally signed the document during the meeting; Sally testified she
could not recall when she signed it.
9 OCS filed the emergency petition just prior to the
meeting. The initial petition for emergency custody, filed
October 11, 2006, reported that OCS had taken Edward into custody
that day. In an amended petition filed on November 6, 2006, OCS
indicated that custody of Edward had been taken on October 10,
2006.
10 Schaeffer also testified that the tribal council had
passed a resolution finding that Pam was the childrens Indian
custodian, but it is not clear if the resolution took Marks
objection into account; the parties do not discuss the resolution
in their briefs. The Tribe is not involved in this appeal,
having given notice that: The Social Services Committee has met
and discussed the matter. The members of the Committee have
decided they do not wish to take a position regarding the appeal
of the [trial courts] decision that [Pam] was not an Indian
Custodian based on the facts of the case.
11 Brynna B. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 88 P.3d 527, 529 (Alaska 2004) (citing
A.B. v. State, Dept of Health & Soc. Servs., 7 P.3d 946, 950
(Alaska 2000)).
12 A.B., 7 P.3d at 950 (quoting R.J.M. v. State, Dept of
Health & Soc. Servs., 973 P.2d 79, 84 (Alaska 1999)).
13 Martin N. v. State, Dept of Health & Soc. Servs., Div.
of Family & Youth Servs., 79 P.3d 50, 53 (Alaska 2003) (citing In
re Friedman, 23 P.3d 620, 625 (Alaska 2001)).
14 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d
205, 214 (Alaska 2000).
15 In re Adoption of A.F.M., 15 P.3d 258, 262 (Alaska
2001) (quoting Knutson v. Knutson, 973 P.2d 596, 599-600 (Alaska
1999)).
16 D.M., 995 P.2d at 207.
17 See 25 U.S.C. 1903(6) (2000).
18 Under state law, physical custody is the responsibility
for physical care and immediate supervision of the child. D.J.
v. P.C., 36 P.3d 663, 670 n.26 (Alaska 2001) (citing Bennett v.
Bennett, 6 P.3d 724, 726 (Alaska 2000)); cf. AS 25.30.909(14).
19 In re L.F., 121 P.3d 267, 270 (Colo. App. 2005).
20 See, e.g., the sampling of trial testimony supra p.7.